Justices on Trial

Can Senate confirmation ever be less tortuous?

Edward Whelan

June 18, 2007, Vol. 12, No. 38

Confirmation Wars

Preserving Independent Courts in Angry Times

by Benjamin Wittes

Rowman & Littlefield, 168 pp., $22.95

Benjamin Wittes, a former editorial writer for the Washington Post, has written an insightful and evenhanded exploration of the Senate's role in judicial confirmations. Taking the long view of the confirmation process for both Supreme Court and lower-court nominations, Wittes finds that the process "has changed fundamentally and for the worse" over the last couple of decades. The confirmation process takes ever longer, especially for lower-court nominees, whose ultimate confirmation rates are also falling. Further, the process for Supreme Court nominees "has grown uglier, meaner, and rougher."

Why these changes? Wittes offers a two-step answer. First, since its 1954 ruling in Brown v. Board of Education, the modern Supreme Court has "leveraged [the power of judicial review] into political influence across a far greater range of policy areas." As epitomized by Roe v. Wade, the courts "now intervene in a breathtaking array of democratic decisions and reserve the power to regulate questions of social policy at the core of Americans' sense of autonomy and identity." Second, the changes in the confirmation process are an "institutional reaction by the Senate" to this growth of judicial power. The "new institutional position of the Senate," Wittes laments, "is that any senator is entitled to ask any nominee any question and hold his answer or his refusal to answer against him if the senator so chooses."

From his study of the history of confirmation hearings, Wittes discerns that the grilling of Supreme Court nominees "is, and has always been, either to wring concessions from would-be justices or to tar them as unworthy"--not to inquire genuinely about judicial philosophy. In practical reality, if not in abstract principle, judicial nominees are therefore correct, Wittes maintains, to refuse to answer questions on issues that might come before them. Justice Ruth Bader Ginsburg succinctly stated the standard: "No hints, no forecast, no previews." Senators' grilling, Wittes warns, threatens the independence of the courts by placing nominees in the "absurd dilemma" (especially acute when the Senate majority is of the opposite party from the president) of answering questions in a manner that compromises their conduct of the judicial role, or of jeopardizing their confirmation.

What can be done to improve the process? Wittes sees "no comprehensive solution" but instead proposes two steps "to better manage the conflict."

First, he recommends "eliminating--or at least limiting--live testimony of nominees at their hearings." We have learned "virtually nothing" about nominees from their live testimony, and eliminating that testimony would "remove the central event to which [the confirmation battle] builds." Wittes doubts that the Senate will ever abolish live testimony and, instead, urges that the president, publicly backed by the chief justice, "simply refuse to let his nominees appear before the committee."

Second, Wittes suggests that the majority party in the Senate could demand prenomination consultation "as a condition of giving its consent for any nominee" and "could even refuse to confirm a nominee not selected from a preapproved list of its devising."

Wittes offers many sound judgments. Notably, he embraces the core of the conservative explanation of the confirmation wars: He agrees that "many liberals are concerned principally with achieving or protecting specific results from the courts and will tolerate just about any judicial methodology to get them"; that liberal academics "devote huge amounts of time to defending legally indefensible propositions"; and that the confirmation process is, for many on the left, "nothing more than an opportunity to exact loyalty oaths to Roe v. Wade and other sacred cows."

Likewise, he finds that the liberal counternarrative--that Republican presidents are packing the courts to roll back civil rights and undo the New Deal--is badly off the mark: "Mostly, [Republicans] contemplate a return in a prospective fashion to a more traditional judicial methodology, one better focused on explicit text and clear history." But the strengths of Wittes's book--including a fine summary of ideological opposition to various Supreme Court nominees from Louis Brandeis forward--are undermined by three deep flaws.

First is Wittes's central thesis, his "institutional" explanation of senators' behavior. Taken seriously, an "institutional" explanation would suggest that senators, who are so notoriously jealous of their own fiefdoms, have somehow responded to the massive growth of judicial power by approaching judicial nominations with the interests of the Senate as an institution in mind. Were this so, one would expect a bipartisan Senate consensus in favor of judicial deference to federal legislation, no matter what policy interests were at stake, and an insistence that senators, far from being obligated to accept Supreme Court decision-making as binding precedent, have an independent power and duty to construe the Constitution and to challenge the Supreme Court's power grabs.

What Wittes apparently means by his "institutional" explanation is something very different, and not really institutional at all. Senators of various policy stripes, hoping to get from the courts what they want and to block what they don't, regard judicial confirmations as one of the institutional means available to them to advance their interests. Unfortunately, Wittes's "institutional" misnomer deters him from probing more deeply the incentives that shape senators' conduct--and from exploring whether those incentives apply differently to different groups of senators.

Second, beyond displaying the virtue of evenhandedness, Wittes appears to suffer from a rare dogmatism of moral equivalence. Most starkly, at the end of a long litany of liberal misdeeds towards conservative nominees, Wittes suddenly declares that the "moral equivalence [between liberal and conservative opposition to judicial nominations] is exact." This dogmatism, which manifests itself repeatedly, prevents Wittes from examining seriously the two pieces of evidence that directly challenge his picture of a bipartisan degradation in the process: the Senate's confirmations of the only two Democratic nominees to the Supreme Court since Richard Nixon became president in 1969, Ruth Bader Ginsburg (confirmed by a 96-3 vote in 1993) and Stephen Breyer (87-9 in 1994).

Why did leading Republicans rush to embrace Ginsburg and Breyer, even before reviewing their records? Why were those confirmation hearings such tame and courteous affairs with, to take but one of endless examples, Senator Strom Thurmond assuring Ginsburg early on that "you don't have to answer to any [questions] if you feel that you shouldn't"? Why was the Republican vote overwhelmingly in favor of these two nominees?

Wittes's only answer, made in passing, is that the "opposition party" will not fight if it "deems the nominee as close to its views as it can hope for from the administration--as happened with Ruth Bader Ginsburg and Stephen Breyer." But this answer is deeply unsatisfactory. How, for starters, was John Roberts further from what Democrats could reasonably hope for than Stephen Breyer was from what Republicans could hope for? How was the superbly qualified Samuel Alito more conservative than the former ACLU activist and feminist Ginsburg was liberal? Yet Roberts was viciously attacked by Senate Democrats and the left as hostile to civil rights, as condoning violence outside abortion clinics, and as a "Neanderthal."

Further, as Wittes nicely points out, the 22 votes against him exceeded the combined total for all the then-sitting justices other than Justice Clarence Thomas and would have been much higher if Senator Patrick Leahy and other Democrats had not made the tactical decision to preserve their ammunition for the next nominee. And Alito faced a vitriolic hearing, an unprecedented partisan filibuster effort, and 42 votes against his confirmation.

The difference, others contend, is that President Clinton consulted with leading Republicans like Senator Orrin Hatch and received their clearance on Ginsburg and Breyer. The factual predicate is accurate, but the explanation is largely question-begging. Hatch (for whom I then worked) openly invoked the principle that Clinton was entitled to considerable deference on his Supreme Court nominees, and he never drew a jurisprudential line in the sand. He objected to candidates like Bruce Babbitt and Mario Cuomo on the ground that their prominent political profiles, and the enemies that they had earned over the years, would make it difficult for him and other Republicans to support them. He was, in short, eager to help Clinton avoid a fight.

By contrast, can anyone imagine any serious proponent of judicial restraint who would receive preclearance from Patrick Leahy, Edward Kennedy, and Charles Schumer?

I do not mean to suggest that the typical Republican senator acts from more noble motives on judicial nominations than the typical Democrat. But I do believe that there is a significant difference in their conduct--and in the incentives that shape their conduct. In particular, many Republicans have conditioned themselves to believe that, on a high-profile matter like a Supreme Court nomination, the course that is in their self-interest--the easiest path to reelection--is to keep the nomination from becoming controversial and to support the nominee even, or rather especially, when the nomination is by a Democratic president. Republicans will use obscure procedures to obstruct lower-court nominees, but they shy from public battles. Democrats with national ambitions are driven, even at their political peril (recall Tom Daschle), to fight Republican judicial nominees tooth and nail.

Unfortunately, Wittes's dogma of moral equivalence blinds him from recognizing, much less exploring, the reasons for, this disparity.

The third basic defect in Wittes's book is that, despite his stated concern about separation of powers, he evinces little interest in examining which judicial philosophy best comports with the judicial role under our constitutional system. Maintaining his posture of neutrality, he treats as interchangeable all exercises of judicial power that strike down legislation. But the confirmation wars are rooted in competing understandings of the judicial role and in sharply conflicting views of which exercises of judicial power are legitimate. There is no process solution to these battles.

Indeed, Wittes's two specific recommendations would likely make the process worse. It may well be, as Wittes asserts, that we learn "virtually nothing" about the nominees from their live testimony. But we did learn quite a bit, during Roberts's and Alito's testimony, about the quality and integrity of their Senate attackers. Wittes's second proposal is even worse. Having devoted most of his book to documenting the poor behavior of senators, Wittes then recommends enhancing their power during the prenomination phase. But the problem with senatorial behavior is not, as Wittes would have it, that it is misfocused on the confirmation phase. It is, rather, that too few senators have both a sound understanding of what good judging is and an interest in promoting it.

Wittes's proposal, if it were adopted, might well lead to quieter confirmation processes, but it would also make it much more difficult for a president to make quality appointments. To put the point concretely: If Democrats had been in the majority during 2005, it is inconceivable that they would have put either John Roberts or Samuel Alito on their "preapproved list." Wittes's proposal, in short, would invite even more senatorial irresponsibility and gamesmanship.

In the end, the confirmation wars that Wittes decries are only a symptom of a deeper illness--not, as Wittes asserts, the mere growth of judicial power, but rather the judicial usurpation of American citizens' power of self-governance on a broad range of issues that the Constitution, fairly construed, leaves to the political processes. The long-term remedy for that illness is the appointment of justices who will restore the judicial role to its properly modest realm. That prospect requires that senators be driven to support nominees whose records indicate that they will practice judicial restraint--and to oppose vigorously those whose records indicate they won't.